Judge says she'd do nothing different in capital case

Keller says she would do nothing different

Published 5:30 am, Wednesday, August 19, 2009

SAN ANTONIO — The presiding judge of the Texas Court of Criminal Appeals who refused to keep open the clerk's office before a last-minute death row appeal could be filed told a crowded courtroom Wednesday she would do nothing different if presented again with a similar request.

“Yes, that is correct,” Judge Sharon Keller said from the witness stand when asked if she would respond the same as Sept. 25, 2007, the day death row inmate Michael Richard was executed after being denied a request to file an appeal after 5 p.m.

Immediately after her answer, special prosecutor Mike McKetta said, “Pass the witness.”

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Keller, the state's highest criminal judge, faces possible removal from office after being charged with five counts of judicial misconduct, including failing to follow the court's execution-day protocol on the day Richard was executed.

Keller testified she knew the court's unwritten procedures required her to inform fellow appellate Judge Cheryl Johnson of any communication regarding the execution. Johnson testified this week she was expecting a last-minute appeal because the U.S. Supreme Court agreed earlier that day to decide whether lethal injection equated to cruel and unusual punishment.

Brief phone conversation

A paralegal for Richard's attorneys had called the clerk's office just before 5 p.m. that day stating that they were running late and asking if they could have more time. The clerk called then-general counsel Ed Marty, who notified Keller.

After a brief phone conversation, Keller responded: “We close at 5.”

Richard's appeal was never filed and he was executed three hours later.

Keller spent a total of about three hours testifying over two days that she did nothing wrong when she ordered the clerk's office closed, saying the decision was an administrative one. She said she was fulfilling the role of an administrator — not a judge — when she spoke with Marty.

“I was not (making a ruling),” she said. “I was stating as a fact the clerk's office closes at 5.”

McKetta also pointed out in Wednesday's testimony that Keller appeared to have a different position when responding to a federal lawsuit that Richard's family filed against her in 2007. In court documents, Keller argued that she was exempt from the suit because her actions that day were protected by judicial immunity. Her lawyers for the lawsuit referred to the phone conversation as “effectively an oral request for a stay of execution.”

After Keller finished testifying Wednesday, prosecutors played a taped deposition from Marty before resting their case.

When asked if there was anything he would have done differently about the conversation, Marty said he had hoped Keller would agree to let the clerk accept the filing late, but once he received her answer, he felt there was nothing more he could do. He wasn't allowed to contact litigants unless they called him, he said, and the chain of command prevented him from approaching another judge.

“I regret that I didn't really know how to advise Judge Keller,” he said, adding that he still isn't sure what he could have done once she gave an answer.

Since then, the only solution he's been able to come up with is to have placed emphasis on the word “clerk” when relaying the message to deputy clerk Abel Acosta that “the clerk's office closes at 5.” The emphasis, he said, might have been “a hint to (Richard's attorneys) that that's magic language.”